Westside Enterprises, Inc. v. City of Dexter

• Decision Date: 06 December 1977
• Docket Number: No. 10479,10479
• Citation: 559 S.W.2d 638
• Parties: WESTSIDE ENTERPRISES, INC., Plaintiff-Appellant, v. The CITY OF DEXTER, a Municipal Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 638

559 S.W.2d 638

WESTSIDE ENTERPRISES, INC., Plaintiff-Appellant, v. The CITY OF DEXTER, a Municipal Corporation, Defendant-Respondent.

No. 10479.

Missouri Court of Appeals, Springfield District.

Dec. 6, 1977.

Gary L. Smith, Smith & Holden, P. C., Dexter, for plaintiff-appellant.

Paul McGhee, Dexter, for defendant-respondent.

Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.

TITUS, Judge.

Plaintiff petitioned for a declaration as to the permissible uses of its property under the zoning ordinance of the City of Dexter. The petition raised issues as to whether the ordinance classified the land as single-family residential (R-1), whether plaintiff had a vested right in a commercial use and whether, if the ordinance classified the land R-1, it was invalid as applied. Although the trial court received evidence on these issues, it did not declare plaintiff's rights but dismissed the petition. Plaintiff, on appeal, regarding the dismissal as a declaratory judgment, presents four points of error in the court's implied findings and holdings. We view the dismissal as not having reached the merits and affirm.

The land in issue is Outlot No. 2 of Ridgetop Acres, a residential subdivision in Dexter. The plat of the subdivision shows two outlots crosshatched and marked "Commercial Area." The Zoning Map merely copies the plat including the crosshatching and "Commercial Area" markings but places the reproduction in a boldly outlined area marked "R-1". The ordinance incorporates the zoning map with "all its notations, references, and other information shown thereon . . . as if the notations, references and other matters set forth by said map were all fully described (therein)." These facts give rise to the issue of whether the ordinance includes the outlot in the single-family residential district or preserves a commercial use.

Plaintiff's president testified that, although he frequently looked at the map, he did not believe the land was included in the R-1 district until a prospective buyer, intending to build a real estate office and apartment buildings, refused to go through with the deal. The president said, "I don't know, I think he was trying went to get a permit." Subsequently, plaintiff initiated procedures to get a zoning change, but the Zoning Commission refused to recommend, and the Board of Aldermen to approve, a zoning change. Although the ordinance, in conformity with § 89.100, V.A.M.S., empowers the Board of Adjustment "(t)o hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Zoning Inspector in the enforcement of (the) Ordinance, and may affirm or reverse, in whole or part, said decision of the enforcement officer", the plaintiff did not seek a decision from the Zoning Inspector as to the classification of the outlot and so did not appeal such decision to the Board of Adjustment. Instead, it filed its petition for declaratory judgment which was amended, on the day of trial, to raise the issue of the classification of the outlot.

An adequate administrative remedy must be exhausted before a court may give injunctive or declaratory relief from the provisions of a zoning ordinance. Evans v. Roth, 356 Mo. 237, 244, 201 S.W.2d 357, 360-361 (banc 1947); American Hog Company v. County of Clinton, 495 S.W.2d 123, 126(6) (Mo.App.1973). Such a remedy is exclusive and failure to exhaust it deprives a court of jurisdiction to give equitable or declaratory relief. Ackerman v. City of Creve Coeur, 553 S.W.2d 490, 491(1) (Mo.App.1977). Exhaustion of adequate administrative remedies has been held to include application for such remedy as well as appeal of an unsatisfactory decision to an administrative body. Bormann v. City of Richmond Heights, 213 S.W.2d 249, 253(7) (Mo.App.1948). Since plaintiff neither applied to the Zoning Inspector for a decision as to whether his land was classified R-1 nor appealed an unsatisfactory decision to the Board of Adjustment, plaintiff failed to exhaust adequate administrative procedures. Thus, the circuit court lacked jurisdiction to declare whether the ordinance placed the outlot in the classification of R-1. We, therefore, approve its dismissal of the petition without such declaration.

Although it is generally said that the exhaustion of administrative remedies is not required where petitioner challenges the validity of a zoning ordinance (Women's Christian Ass'n of Kansas City v. Brown, 354 Mo. 700, 709, 190 S.W.2d 900, 906(12) (1945); 82 Am.Jur.2d, Zoning and Planning, § 333, at p. 904), well reasoned cases in other jurisdictions do not except challenges to validity from the exhaustion requirement (State ex rel. Lieux v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414, 416-417(2) (1951)) or confine this exception to cases where the validity of the ordinance is being attacked in its entirety, and do require exhaustion where the validity of the ordinance is being challenged in its application to a particular parcel. Metcalf v. Los Angeles County, 24 Cal.2d 267, 148...